In the work categories under the immigration rules, earnings are vital for extensions and acquiring settlement rights (or Indefinite Leave to Remain). But, as the Upper Tribunal (Mr Justice Blake and Judge Pitt) has explained in this case, the requirements for settlement under the old work permit scheme are not to be confused with similar applications under the points-based system (PBS). Following the refusal of the appellants’ settlement applications under paragraph 134 (Indefinite leave to remain for a work permit holder) of the immigration rules, First-tier judge Vaudin D’Imcourt made material errors of law in connection to the immigration rules and the ECHR. The four appellants in this case were Mrs Philipson (a care assistant), her husband and two daughters.

The refusals were connected to a sneaky addition to the rules (on 6 April 2011) which required that work permit holders had to follow the Tier 2 (Guidance) on earnings. In order to cure the initial defect of not providing sufficient evidence of earnings, a letter from Mrs Philipson’s employer confirming a backdated pay increase was shrewdly attached with the grounds of appeal.

At first instance, without having heard the appellants’ counsel on the point, the judge wrongly determined that the refusal concerned an application identified in the immigration rules which fell to be considered under the PBS.

Correcting this mistake the Upper Tribunal, at para. 13, also expressed concern about “the decisions of the decision maker [UK Border Agency] and the judge” and clarified the details “in case they arise in other decisions of this kind.”

In remaking the decision the Upper Tribunal, at para. 14, pointed out that Mrs Philipson did not require a certificate of sponsorship setting out details of her earnings in accordance with SOC code 6115 (senior care assistant) because she was granted a 5-year work permit which made her eligible for settlement without having to satisfy rule 134(iv) – “his employer certifies that he is paid at or above the appropriate rate for the job as stated in the codes of practice for Tier 2 Sponsors published by the UK Border Agency”.

Moreover, after serving a one stop notice there was a failure by the UKBA to take a removal decision under paragraph 395C – to be deleted on of 13 February 2012 – before the case came up on appeal which meant that there was a degree of segregation of the decision which was unfair in light of the Court of Appeal’s findings in Sapkota v SSHD[2011] EWCA Civ 1320: the Upper Tribunal thought that there were compassionate circumstances to allow the appellants to remain in the UK.

It was also explained, at para. 17, that the timing of the clandestine new requirement, in the 59th month of Mrs Philipson’s 60-month stay in the UK, coupled with the lack of her employer’s awareness caused “an intrinsic lack of justice”.

The Upper Tribunal was “surprised” that in dismissing the appellants’ Article 8 appeal, judge D’Imcourt relied on CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 00305 (IAC) to conclude that Article 8 cannot be “used as a waiver of the immigration rules”: at paras. 19 & 20. The fact that the appellant had been given leave to enter with a view towards settlement and that she did “a demanding and low paid job as a care assistant” meant “that there was private life deserving of respect”: at para. 20.

Thus, Mrs Philipson had a legitimate and reasonable expectation of acquiring settlement rights in the UK if she adhered to the conditions of her visa. The Upper Tribunal then turned to the question whether interference with the appellants’ private life was justified and proportionate. It observed that judge D’Imcourt misdirected himself by relying on CDS to conclude that the interference was proportionate with the aim of controlling immigration, whereas the correct approach to proportionality was to find a legitimate aim within Article 8(2) and then ask whether the refusal was a proportionate measure in the pursuit of the legitimate aim?

In answering this question in Mrs Philipson’s case, the Upper Tribunal decided that neither she nor her family threatened the economic or social order and therefore they qualified for settlement.

It was also explained that in the appellants’ Article 8 case, the evidence contained in the employer’s letter was admissible under sections 85A(4)(b) and (d) of the Nationality Immigration and Asylum Act 2002, even if it were to be excluded under section 85A(4)(a) on the basis of section 85A(3)(b), because the said evidence was towards a human rights claim rather than a PBS application.

Moreover, even without the evidence of earnings in the letter, the fact that Mrs Philipson provided valuable social services in exchange for low wages in a shortage occupation and met the statutory minimum wage conditions meant that it was “very harsh” to refuse her visa due to a change in policy on the employer’s side of the work equation.

Therefore, in promoting the legitimate aim of maintaining reasonable wage rates in the care sector, it was better to require the employer to increase wages or to permit an employee to find a better paying employer: “It was trite law that a measure may be a disproportionate interference with a human right if the decision maker had not adopted an alternative means of promoting the aim that is less intrusive on the right”. (SSHD v Daly[2001] UKHL 26; [2001] 2 AC 532 at para. 27)

In allowing the appeal under the immigration rules and Article 8, the Upper Tribunal determined that:

ii) Post decision evidence of a back-dated wage increase is admissible on appeal to demonstrate compliance with rule 134(iv).

iii) It is doubtful whether rule 134(iv) applies to those who never needed a certificate of sponsorship with a salary level identified in guidance relating to such certificates.

iv) If such a person could not comply with the rules on settlement for reasons of a new salary level, there was a strong claim that leave to remain was required to respect the private life established in the reasonable expectation of settlement if the conditions for settlement applicable on arrival were adhered to, and a relatively weak case for justifying interference with such private life to promote a legitimate public interest recognised by Article 8(2) ECHR.

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